Friday, July 25, 2008

RedLasso, CAIR, Fair Use & The First Amendment (Updated)

RedLasso is a tremendous program that allows bloggers to search through all the newscasts of the last two weeks and make clips of up to ten minutes in length. Unfortunately, today, it appears that the site has been shut down by lawsuits brought by two broadcast companies.

This appears on the RedLasso website, dated July 25, 2008:

To Our Loyal Users:

We would like to thank you for your continued support of Redlasso. You have been essential to making Redlasso a household name online. Unfortunately, due to the legal actions taken against Redlasso by two networks, we are left with no alternative but to suspend access to our video search and clipping Beta site FOR THE IMMEDIATE FUTURE. The networks have provided a big blow to the blogger community’s right to exercise the first amendment and comment on newsworthy events. It is anti-Web. During this service suspension, we will continue our conversations with content providers, with the goal of establishing formal partnerships that will quickly help us restore access to the Beta site. . . .

This is unfortunate to say the least. I am not a first amendment scholar, but RedLasso's service would seem to fall within the "fair use" doctrine. Given the grotesque bias oft displayed by the MSM, services such as RedLasso are of incredible import to the blogging community and the ability of the blogging community to provide an alternative voice.

The "fair use doctrine," a common law doctrine originating in the 1840's and codified as part of the Copyright Act of 1976 provides:

US COPYRIGHT ACT, Chapter 1, § 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

This doctrine was unchanged by the Digital Millenium Copyright Act.

For example, the "fair use" doctrine was recently used by CAIR to defend successfully against a lawsuit brought by Michael Savage over their use of clips from Savage's show:

Savage sued the Council on American-Islamic Relations, or CAIR, for copyright infringement and racketeering lawsuit late last year, claiming the group violated his rights by using a segment of his "Savage Nation" show in a letter-writing campaign to get advertisers to boycott the program. In the broadcast used by CAIR, Savage also called the Muslim holy book "a throwback document."

In her ruling Friday, U.S. District Judge Susan Illston said people who listen to a public broadcast are entitled to use excerpts for purposes of comment and criticism. She also said no evidence was presented to show that advertising on the show's broadcast was affected by CAIR's actions.

Without considering the commercial aspects of CAIR's use, I otherwise have no doubt that the Judge got this decision right. I do hope RedLasso has good lawyers. This is a matter that could have huge ramifications for the blogopshere.

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